Court challenge of Ontario's vaccination law unlikely to succeed: experts

Shawn Jeffords, The Canadian Press
Published Tuesday, October 29, 2019 10:41PM EDT

TORONTO - A group of vaccine skeptics is unlikely to succeed in their effort to persuade a court that Ontario's child vaccination laws violate parents' rights, constitutional experts said Tuesday.

The non-profit organization Vaccine Choice Canada as well as five Ontario mothers launched the court case this week, alleging the Immunization of School Pupils Act breaches various rights enshrined in the Constitution. The group alleges the law violates rights to freedom of conscience and religion and to liberty and security of the person, among others.

Emmett Macfarlane, a political science professor at the University of Waterloo, said the government will be on strong ground to argue the law is designed to protect all students from illness.

“It tries to ensure there are broad-based and accessible vaccinations and ... prevent children from getting all sorts of really bad diseases,” he said. “On that ground, it's going to be very difficult for these claimants to argue the opposite.”

The provincial law states that parents must ensure their children are vaccinated against a certain list of diseases unless they obtain a medical exemption. Parents can also obtain an exemption if they sign a statement of conscience or religious belief, but as of 2017, they must first attend an information session on vaccination.

Under the law, children whose parents do not comply can be suspended from school on order from a medical officer of health.

The allegations have not been tested in court and the province has not yet filed a statement of defence.

The group behind the challenge includes mothers who each have between two and five children, some of whom they allege have been barred from school due to their lack of vaccinations.

In its statement of claim, the group alleges forcing parents to sign the document amounts to compelled speech and violates their rights by “posing a potential criminal liability.”

They particularly object to a part of the document that lists the dangers of not being vaccinated and tells parents that by signing, they are accepting responsibility for putting their child's “health and even life at risk.”

University of Ottawa law professor Carissima Mathen said the government will likely be able to successfully argue that its current exemption based on religious grounds is sufficient.

“That's a concession for people who are opposed to vaccines,” she said. “I think the government, if it wished, could make a strong case that that would be a reasonable limit on someone's charter rights but they haven't even done that there. I think this is a fairly modest policy.”

Meanwhile, dozens of the group's supporters demonstrated outside of Ontario's legislature Tuesday, carrying placards that urged the government not to violate their constitutional rights.

Christine Colebeck, a parent who attended the demonstration and acted as spokeswoman for the group, said the information session required to opt out of vaccines is a barrier for many parents who have to leave work or make special arrangements to attend.

“We're hoping to tell the government ... we want to be able to make a choice whether or not our children should be able to get (vaccines),” she said. “We don't want to have barriers put in place of our charter rights.”

Colebeck said the further requirement for parents to sign a statement of conscience or religious belief also violates parent's freedom of speech.

Sohail Gandhi, president of the Ontario Medical Association, said the province's doctors support all efforts to get as many people vaccinated as possible. He worries that the added attention of the court case will lead to the spread of misinformation about vaccines.

“We have to provide positive, factual, correct information to the patients of Ontario,” he said.

A spokeswoman for Health Minister Christine Elliott said the government is committed to ensuring a strong and effective immunization system.

“For more than 200 years vaccines have been saving lives around the world,” Hayley Chazan said in a statement. “Minister Elliott continues to encourage all Ontarians to stay up to date with their vaccinations.”